INTRODUCTION
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Thanks for inviting me to discuss significant laws
relating to non-citizens. I compliment Judge Flores
and everyone else responsible for organizing this
seminar.
Although the Code of Judicial Conduct precludes me
from advocating or not advocating for non-U.S.
citizens, a survey of significant laws hopefully will
assist you.
Attitudes toward non-U.S. citizens - fear, outrage,
distress, concern, anger; these ABOV’s translate to
bias, prejudice, unfairness against both litigant and
non-litigant non-citizens, why?
Our discussion begins with some definitions.
1
DEFINITIONS
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Anyone physically here is either citizen or
non-citizen.
Citizen status: 1) born in U.S.A.; 2) born in
U.S. territory (Guam, Panama Canal Zone,
Puerto Rico, Virgen Islands); 3) birth to U.S.
citizen living abroad with registration at
birth; 4) naturalized citizen.
2
NOT CITIZEN - LAWFUL
PRESENCE
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LAWFUL PERMINANT RESIDENT (“GREEN
CARD”)
IMMIGRANT VISA-HOLDER
NON-IMMIGRANT VISA-HOLDER
ASYLUM-SEEKER
REFUGEE
VICTIM OF HUMAN TRAFFICKING OR
OTHER CRIME (such as protective order)
WORK VISA
3
NOT CITIZEN - UNLAWFUL
PRESENCE
UNLAWFUL PRESENCE UNDOCUMENTED WITH NO
IMMIGRATION STATUS
4
42 U.S.C.A. § 1981
“All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and
enforce contracts, to sue, be parties, give
evidence, and to the full and equal
benefit of all laws and proceedings for
the security of persons and property as is
enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind,
and to no other.”
5
HB - 2090
written statement signed by an accused
criminal defendant must be presented in
the language accused understands
– House Sponsor: Terry Canales (139-4)
– Senate Sponsor: Chuy Hinojosa (31-0)
– Takes Effect: Sept. 1, 2013
6
In the Interest of Z.L.T., J.K.H.T. and
Z.N.T. Minor Children, 124 S.W.3d 165
(Tex. 2003)
”As a constitutional matter, a litigant cannot be
denied access to the civil courts merely because of
his status as an inmate”
Balancing Test: inmate’s need for access against
need to protect the integrity of the judicial system
If judge determines that inmate should not be
allowed to appear personally, he may still be
allowed to proceed by affidavit, deposition,
telephone or other legal means
7
In the Interest of E.N.C., J.A.C., S.A.L., N.A.G.
and C.G.L., Minor Children, 384 S.W.3d 796
(Tex. 2012)
“. . . an immigrant convicted in another state of unlawful conduct with a minor
and given a probated sentence years before his children were born was later
deported to Mexico. The State relied on these facts in petitioning to terminate
this father's parental rights, yet put on no evidence concerning the offense
committed years earlier, nor the circumstances of his deportation”
“Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49
(2000) (noting the " extensive precedent" establishing that the Due Process
Clause of the Fourteenth Amendment " protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their
children" ); see also Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct.
2491, 150 L.Ed.2d 653 (2001) (observing that "the Due Process Clause
applies to all ‘persons' within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent").”
”Due process commands that courts apply the clear and convincing
evidentiary standard in parental rights termination cases.”
“Because the evidence is legally insufficient to support the trial court's order
terminating Francisco's parental rights under section 161.001, we hold that
the court of appeals erred in affirming the trial court's order as to Francisco “ 8
Appointment Of Interpreter
(Tex. Gov’t Code Ann. § 57.002 )
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(a) A court shall appoint a certified court interpreter or a
licensed court interpreter if a motion for the appointment of
an interpreter is filed by a party or requested by a witness in
a civil or criminal proceeding in the court.
(b) A court may, on its own motion, appoint a certified court
interpreter or a licensed court interpreter.(b-1)A licensed
court interpreter appointed by a court under Subsection (a) or
(b) must hold a license that includes the appropriate
designation under Section 57.043(d) that indicates the
interpreter is permitted to interpret in that court.
(c) (d) and (e) ommited (relate to counties with certain
population that may appoint unlicensed court interpreters)
9
U-VISA CERTIFICATION
INA § 101(a)(15)(u), 8 U.S.C. 1101(a) 15(u)
1.
U-VISA authorized by Congress under Violence Against Women Act (VAWA)
2.
Citizenship and Immigration Services (USCIS) branch of Department of
Homeland Security (DHS)
3.
Provides relief for immigrant victims of crime to obtain temporary visa for
lawful immigration status
4.
4 statutory eligibility requirements
- suffered substantial physical or mental abuse as victims of certain
criminal activity
- possesses information concerning criminal activity
- has been helpful, is being helpful or is likely to be helpful in
investigation or prosecution of crime and
- victim of criminal activity that occurred in U.S. or violated laws of
U.S.
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T-VISA CERTIFICATION
22 U.S.C. § 7101 st. seq.
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Trafficking Victims Protection Act allows victims of severe
forms of human trafficking to obtain immigration status (TVISA).
Temporary non-immigrant visa.
T-VISA holder may apply for lawful permanent residence after
3 years
Requirements:
1. Victim of severe form of human trafficking.
2. Physically present in U.S.due to human trafficking
3. Comply with reasonable request for assistance in
investigating and prosecuting acts of human trafficking.
4. Be exposed to extreme to extreme hardship involving
unusual and severe harm upon removal.
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PROTECTIVE ORDERS
Tex. Fam. Code, Title 4, Protective Orders &
Family Violence, Chapter 81.001 et. seq.
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Victims of family violence:
1.
2.
May obtain protective orders
without immigration status just like
U.S. citizen.
May qualify for relief under federal
immigration law with an
adjustment of status.
12
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,
47 L. Ed. 2d 18 (1976)
and
Lassiter v. Dept. of Social Services, 452 U.S. 18,
101 S.Ct. 2153, 68 L. Ed. 2d 640 (1981)
FACTORS IN DETERMINING WHETHER TO APPOINT COUNSEL
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the private interest that will be affected by the
official action;
the risk of an erroneous deprivation of a private
interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and
the Government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail.
13
APPOINTMENT OF COUNSEL IN CIVIL CASES:
1. Tex. Gov. Code 24.016
Gives district judge the discretion to appoint counsel to a civil litigant who makes an
affidavit that he is too poor to employ counsel.
2.
Tex. Fam. Code 157.163(b)
Where incarceration is a possible result of a contempt proceeding, the indigent
respondent is entitled to appointment of counsel.
3. Tex. Fam. Code 107.13(a)(1)
Termination of parental rights of indigent parent triggersd statutory right to appointment
of counsel.
4. Tex. Fam. Code 51.10(b)(6)
Juvenile is entitled to mandatory, unwaivable rights to counsel for discretionary transfer
proceedings.
5. Tex. Fam. Code 51.10(f)(2)
Indigent Juveniles receive assistance of counsel for appeals.
6. Texas Health and Safety Code 574.003(a)
Application for Court ordered mental health services triggers appointment of counsel for
proposed patient.
14
Choudhry v. Jenkins,
559 F.2d 1085, (7th Circ. 1977)
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Khalid Choudhry, a Pakistani resident alien,
was fired from his occupation as a
correctional officer in Michigan City when he
made critical remarks about the prison’s
administration to the press.
A resident alien’s 1st Amendment rights are
established and protected by the liberty
clause in the 14th Amendment.
15
BRIDGES V. WIXON,
326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103
(1945)
Harry Bridges was an alien from Australia who
entered the United States in 1920. Deportation
proceedings were instituted against him in 1938 on
the grounds that he had been a member and
affiliated with the Communist Party.
First Amendment rights of the freedom of speech
and press are granted to aliens who reside in the
United States. This freedom protects aliens from
false imprisonment as well as deportation.
16
KWONG HAI CHEW v. COLDING,
344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576
(1953)
Chew, a Chinese seaman, admitted to U.S., married
a native American, bought a house and resided in
New York; proved good moral character for
preceding 5 years so he secured suspension of his
deportation and admitted as permanent resident.
An alien who is lawful permanent resident of U.S.
and remains physically present here is a “person”
within the meaning of the Fifth Amendment and
may not be deprived of life, liberty, or property
without due process of law even if his status later
altered.
17
Mathews v. Diaz, 426 U.S. 67, 96 S.Ct.
1883, 48 L. Ed. 2d 478 (1976)
5th & 14th Amendments Protect Every
Person in the Country even those "Whose
Presence .... Is Unlawful, Involuntary or
Transitory.”
Constitutional protections against
deprivation of life, liberty or property
without due process of law extend to aliens.
18
RUSSIAN VOLUNTEER FLEET v. UNITED STATES,
282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931)
Just Compensation Clause of Fifth Amendment applies to aliens.
Petitioner, Russian Volunteer Fleet, was a Russian corporation that
was the assignee for the value of contracts regarding the
construction of two vessels for a corporation in New York. In
accordance with the Act of June 15, 1917 by executive order of the
President, the contracts and vessels were requisitioned. Just
compensation was valued at $1,412,532.35 for contracts valued
at$4,000,000.
Government taking property of alien friend by eminent domain must
pay equivalent of full value immediately upon taking.
19
Padilla v. Kentucky, 559 U.S. 356, 130
S.Ct. 1473 176 L. Ed 2d 284 (2010)
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Imposes a 6th amendment duty/obligation
on trial counsel to inform non-citizen client
of the potential immigration consequences
of their plea of guilty
Clarifies trial counsel’s duty when
deportation consequences are truly clear
and also when the law is not succinct and
straightforward
20
CHAIDEZ v. UNITED STATES,
_____ U.S. _______, 133 S. Ct. 1103, 185
L. Ed. 2d 149 (2013)
Held that Padilla v. Kentucky is NOT
retroactive
Padilla does not apply retroactively to
cases already final on direct review
21
WONG WING v. UNITED STATES,
163 U.S. 228, 16 S.Ct. 977, 981, 41 L. Ed.
140 (1896)
Chinese Exclusion Act imposed imprisonment at
hard labor and deportation to Chinese person
convicted of unlawful entry to or present in the U.S.
Wong Wing was found to be an unlawful alien and
was imprisoned and sentenced to 60 days of hard
labor followed by deportation.
All persons, including resident aliens, within the
territory of the United States are entitled to the
protections guaranteed by Fifth and Sixth
Amendments.
22
JUVENILE CONDUCT AFFECTS
IMMIGRATION STATUS
8 U.S C – 1182 (a)(2)(a)(c) and (d)
1.
Juvenile Adjudication not considered conviction under
federal immigration law.
2.
“reason to believe” that juvenile involved in trafficking
drugs, controlled substances crimes or crimes involving
moral turpitude, findings of drug abuse or addiction, or
history of sexual offenses.
3.
Findings in juvenile case may create grounds for
deportation or inadmissibility.
4.
Once Juvenile court transfers jurisdiction to district court,
immigrant juvenile becomes subject to inadmissible and
deportable consequences that adults face.
23
Application of Gault, 387 U.S. 1, 87 S.
Ct. 1428 18 L. Ed. 2d 527 (1967)
Due process clause of the 14th
Amendment requires that in
proceeding to determine delinquency
which may result in commitment to an
institution in which the juvenile’s
freedom is curtailed, the juvenile has a
right to appointed counsel.
24
Plyler v. Doe, 457 U.S. 202, 102 S.
Ct. 2382, 72 L. Ed. 2d 786 (1982)
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Held unconstitutional Texas practice of refusing to
finance education of undocumented children and
authorizing school district to exclude them from
enrolling in free public schools.
Practices repugnant to 14th amendment equal
protection clauses which guarantee that no state
shall deny any person within its jurisdiction equal
protection of law.
Guarantees under 14th amendment extend to every
person regardless of citizenship or immigration
status.
25
YICK WO v. HOPKINS,
118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)
Yick Wo, a former China native, was imprisoned
for operating a laundry business in a wooden
building in violation of a San Francisco statute.
Yick alleged he was unlawfully deprived of
personal liberty and equal protection of the laws
of the U.S.
The Fourteenth Amendment provides resident
aliens with equal protection of the laws.
26
Tyson Foods, Inc. v. Guzman,
116 S.W.3d 233 (Tex. App.—Tyler 2003)
* Guzman was in the process of rounding up chickens
when a Tyson employee ran into him with a forklift
causing serious injuries. Because Guzman, an
employee of Tyson’s self-contractor, was not a U.S.
citizen and unauthorized to work here, Tyson
contends that he cannot recover compensatory
damages for lost wages.
* Texas law does not require citizenship or the
possession of immigration work authorization
permits as a prerequisite to recovering damages for
lost earning capacity.
27
Republic Waste Services, Ltd. v.
Martinez, 335 S.W.3d 401 (Tex. App. –
Houston [1st Dist.] 2011, no pet.)
Martinez sued RWS, a non-subscriber under
Workers Compensation Act, for wrongful death of
husband Oscar, an illegal immigrant.
T/C excluded evidence of Oscar’s illegal immigration
status, ruling that probative value was outweighed
by prejudicial effect.
Appellate court affirmed, disagreeing with RWS’s
argument that Oscar would have been deported
due to immigration raids at its facilities.
28
TXI Transportation Co. v. Hughes, 306
S.W.3d 230 (Tex. 2010)
Hughes SUV crashed with TXI truck driven by Rodriguez, an
illegal immigrant. Everyone in Hughes vehicle died except for
one passenger. Survivors and estate of occupants of Hughes
vehicle brought wrongful death and survival action against
driver, her employer and truck owner.
Trial judge allowed evidence of Rodriguez’ immigration status
and misrepresentation of that status. TXI objected as to
relevance and that said evidence was highly prejudicial.
Held: Reversed and Remanded. Allowing evidence for
impeachment as prior inconsistent statement and as specific
instance of conduct attacking credibility amounted to
impugning character of the basis of immigration status.
29
I.N.S. v. LOPEZ-MENDOZA,
468 U.S. 1032, 104 S. Ct. 3479, (82 L.
Ed. 2d 778 (1984)
* Respondent was arrested in San Mateo, Cal.
by an INS agent with no warrant for arrest
or a warrant to search. Deportation
proceeding is a purely civil action to
determine eligibility to remain in U.S.;
immigration judge’s sole power is to order
deportation.
* The 4th Amendment exclusionary rule does
not apply in deportation hearings.
30
U.S. v. VERDUGO-URUQUIDEZ,
494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222,
1990 U.S. LEXIS 1175, 58 U.S.L.W. 4263 (U.S. 1990)
* 4th Amendment protection is limited to a class of people
defined as “persons who are part of a national community or
who have otherwise developed sufficient connection with this
country to be considered part of the community.”
•
The 4th Amendment does not extend to a place within Mexico
unless these conditions are met.
•
D.E.A. agents working with Mexican police searched Mexican
residences and seized documents. Defense argued that
motion to suppress evidence should be granted because, like
the 5th and 6th Amendments, he was entitled to 4th
Amendment protection.
31
HOFFMAN PLASTIC COMPOUNDS, INC. v.
NLRB , 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d
271, 2002 (U.S. 2002)
•
•
National Labor Relations Board awarded
back pay to undocumented alien who was
never authorized to work in U.S.
Federal immigration policy, expressed by
Congress in Immigration Reform and
Control Act of 1986 (IRCA), foreclosed
award of back pay to an undocumented
alien who has never been legally authorized
to work in the United States.
32
U.S. v. PORTILLO-MUNOZ, 643
F.3d 437, (5th Cir. 2011)
•
Illegal alien convicted of unlawfully possessing firearm
allegedly used to protect chickens at ranch from coyotes.
•
Federal statute protects aliens to possess firearms. 18 U.S.C.
922(g)(5)
•
Protections contained in Second Amendment do not extend to
aliens illegally present in the United States.
•
Case of first impression: Constitution does not prevent
Congress from making laws that distinguish between citizens
and aliens and between lawful and illegal aliens.
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CONCLUSION
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Statutes, case law and even public policy favor
allowing all persons who physically reside in the
U.S. access to courts, including family law courts.
Laws protect immigrants and immigrant victims of
family violence, especially victims of domestic
violence and child abuse or neglect.
Documented and undocumented immigrant can
easily establish residency requirements for family
court jurisdiction and venue for access to the
courts.
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